Filed 6/6/23 Castillo v. Alhambra Healthcare & Wellness Centre CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

ESPERANZA CASTILLO, 

Plaintiff and Respondent,

v.

ALHAMBRA HEALTHCARE & 

WELLNESS CENTRE, LP et al.,

Defendants and Appellants.

 B319869

 (Los Angeles County

 Super. Ct. No. 20STCV32074)

APPEAL from an order of the Superior Court of 

Los Angeles County. Richard L. Fruin, Jr., Judge. Affirmed.

De Castro Law Group, José-Manuel A. de Castro and 

Lori V. Minassian for Defendants and Appellants.

Law Offices of Glenn D. Hamovitz and Glenn D. Hamovitz

for Plaintiff and Respondent.

______________________________
2

Plaintiff and respondent Esperanza Castillo filed this 

action against defendants and appellants Alhambra Healthcare 

& Wellness Centre, LP, and Rockport Administrative Services 

LLC doing business as Rockport Healthcare Services alleging 

employment-related claims. Defendants moved to compel

arbitration pursuant to an agreement to arbitrate. The trial 

court denied defendants’ motion on the grounds that defendants 

waived the right to compel arbitration by unreasonably delaying 

in filing their motion to compel. 

We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

The instant lawsuit

On August 21, 2020, plaintiff filed the instant lawsuit 

against defendants. The complaint alleges 11 employmentrelated causes of action.

Defendants’ counsel’s letter to plaintiff’s counsel

On August 31, 2020, defense counsel sent a letter to 

plaintiff’s counsel, advising, inter alia: “[A]s you may . . . recall 

from the documents I provided to you on my clients’ behalf in 

response to your client[’s] pre-litigation request for records, your 

client signed an arbitration agreement at the outset of her 

employment with my client. I have attached a copy for your 

reference. Please let me know if your client will stipulate to 

arbitration of her claims and a corresponding stay or dismissal 

without prejudice of judicial proceedings on her claims pending 

arbitration rather than opposing a motion to compel arbitration.”

Plaintiff’s counsel notifies defense counsel of problems with the 

arbitration agreement

On September 8, 2020, plaintiff’s counsel responded, 

asserting that certain terms in the arbitration agreement were 
3

impermissible. “Without waiving any rights or remedies, I will 

review [the alternative dispute resolution policy documents] 

further and get back to you in the near future about your request 

for a stipulation.”

Answer

Defendants filed their answer to the complaint on 

December 14, 2020, alleging arbitration as one of their 

affirmative defenses.

Case management conference

Defendants’ case management statement

On May 11, 2021, defendants filed their case management

statement, requesting a “nonjury trial” and providing the trial 

court with dates that defendants and their counsel were 

unavailable for trial. The statement also estimated a three to 

five day trial. Furthermore, the statement represented that 

defense counsel had discussed with defendants an alternative 

dispute resolution package and indicated that defendants were 

willing to participate in mediation, a settlement conference, and 

binding arbitration.

Regarding their intent to enforce the arbitration 

agreement, defendants notified the trial court that they were still 

“awaiting [p]laintiff’s response to a request to stipulate to 

arbitration. Will move if necessary.” Defendants indicated that 

they intended to file a “[m]otion to compel arbitration if plaintiff 

declines to stipulate.”

Plaintiff’s case management statement

The following day, plaintiff filed her case management

statement, requesting a jury trial. She mentioned a “[p]ossible 

motion to compel arbitration by defendants,” but asserted that 

her case was exempt from judicial arbitration. She specifically 
4

requested that the following matter be determined at the case 

management conference: “Whether defendants’ delay waives 

their right, if any, to move to compel arbitration. Defendants 

signed Notice and Acknowledgment of Receipts on September 24, 

2020—ALMOST 8 months ago! Defendants answered the 

complaint on December 14, 2020—ALMOST 5 months ago. 

Plaintiff relied on the pending action and timely posted jury fees 

and served notice of the same on defendants[’] counsel on 

December 8, 2020.”

She did not check the box that would have indicated her 

willingness to participate in binding private arbitration.

Case management conference

At the May 24, 2021, case management conference, the 

trial court ordered that all final status conference documents be 

filed by January 31, 2022, and set the matter for a jury trial to 

begin on February 14, 2022.

Regarding defendants’ potential motion to compel 

arbitration, defense counsel represented that a motion to compel 

would be filed within two to three weeks.

Defendants’ motion to compel arbitration

After plaintiff had propounded multiple discovery requests 

on defendants, on November 2, 2021, defendants filed their 

motion to compel arbitration. As is relevant to the issues on 

appeal, defendants argued that they did not waive their right to 

compel arbitration as they (1) pled arbitration as an affirmative

defense in their answer to plaintiff’s complaint,

(2) reaffirmed their intent to move to compel arbitration at the

case management conference, and (3) had not yet conducted any 

discovery or sought affirmative relief from the trial court.
5

Plaintiff’s opposition

Plaintiff opposed defendants’ motion, asserting, inter alia, 

that defendants waived their right, if any, to compel arbitration

by delaying more than 14 months before filing their motion.

Initial hearing on defendants’ motion (Dec. 10, 2021)

The night before the scheduled hearing on defendants’

motion to compel arbitration, the trial court e-mailed the parties 

its tentative ruling. Regarding waiver, the trial court found: “It 

is this last argument that most concerns the Court, and which 

necessitates denial of the motion . . . . Moving parties’ delay in 

seeking arbitration was significant. The Complaint was filed on 

8/21/20. Per proofs of service filed 10/8/20, moving defendants 

were served with S&C on 9/4/20. Defendants’ Answer, filed 

12/14/20, asserts arbitration as an affirmative defense, yet the 

instant motion wasn’t filed until 11/2/21. Plaintiff’s opposition

notes the long delay, and cites cases for the proposition that a 

delay in seeking arbitration supports a finding that the right to 

compel arbitration has been waived. [Citations.]

“The Court finds this argument to be persuasive.

“Notably, while the Reply argues that defendants haven’t 

taken steps which are inconsistent with the right to compel 

arbitration, the Reply offers no explanation for the delay. 

Instead, Defense counsel submits a declaration in which he 

asserts that: a) even before the complaint was served, he asked 

Plaintiff’s counsel whether Plaintiff would stipulate to 

arbitration, but he never got a response; b) he advised the Court 

that a motion to compel arbitration would be forthcoming at a 

case management conference; and c) after he received discovery 

from Plaintiff on 10/1/21, he realized that Plaintiff ‘had elected 

not to stipulate,’ and he then prepared the motion. The 
6

declaration doesn’t explain why Defendants waited; instead, it 

states only that Defendants waited until Plaintiff took action to 

move the case along—i.e., for approximately fourteen months 

after service of the Summons and Complaint. Had defendants 

acted promptly to compel arbitration, the case might have been 

resolved by now in arbitration. Defendants could not simply ‘sit 

on their hands’ and wait for Plaintiff to serve discovery. They 

were obligated to seek to compel arbitration within a reasonable 

time, and they failed to do so.”

During oral argument, defendants cited new case law at 

the hearing. As a result, the trial court continued the hearing to 

allow plaintiff to file a surreply to address the legal authority 

first mentioned at the hearing.

Continued hearing on defendants’ motion (Dec. 16, 2021)

After entertaining further argument from the parties, the 

trial court indicated that it had “looked at the facts carefully,” 

considered the new cases cited by defendants at the prior hearing 

date, and was going to stand by its earlier tentative ruling and

deny defendants’ motion to compel arbitration.

Appeal

Defendants’ timely appeal ensued.

DISCUSSION

I. Relevant law

A court may deny a petition to compel arbitration on the 

ground that “[t]he right to compel arbitration has been waived by 

the petitioner.” (Code Civ. Proc., § 1281.2, subd. (a).) A party 

may waive the right to compel arbitration by failing to demand 

arbitration within a reasonable time. (Wagner Construction Co. 

v. Pacific Mechanical Corp. (2007) 41 Cal.4th 19, 30 (Wagner).) 

“This rule is an application of the general principle of contract 
7

law articulated in Civil Code section 1657, to the effect that, ‘[i]f 

no time is specified for the performance of an act required to be 

performed, a reasonable time is allowed.’ [Citation.] ‘[W]hat 

constitutes a reasonable time is a question of fact, depending 

upon the situation of the parties, the nature of the transaction, 

and the facts of the particular case.’” (Wagner, supra, at p. 30.)

Although there is no uniform or single test for determining 

whether a party’s conduct amounts to a waiver of the right to 

arbitrate, the courts have formulated a list of factors that are 

relevant in making that determination. These include 

“‘“(1) whether the party’s actions are inconsistent with the right 

to arbitrate; (2) whether ‘the litigation machinery has been 

substantially invoked’ and the parties ‘were well into preparation 

of a lawsuit’ before the party notified the opposing party of an 

intent to arbitrate; (3) whether a party either requested 

arbitration enforcement close to the trial date or delayed for a 

long period before seeking a stay; (4) whether a defendant 

seeking arbitration filed a counterclaim without asking for a stay 

of the proceedings; (5) ‘whether important intervening steps [e.g., 

taking advantage of judicial discovery procedures not available in 

arbitration] had taken place’; and (6) whether the delay ‘affected, 

misled, or prejudiced’ the opposing party.”’ [Citation.]”

(St. Agnes Medical Center v. PacifiCare of California (2003) 

31 Cal.4th 1187, 1196 (St. Agnes); see also Simms v. NPCK 

Enterprises, Inc. (2003) 109 Cal.App.4th 233, 240.)

“No one of these factors predominates and each case must 

be examined in context.” (Lewis v. Fletcher Jones Motor Cars, 

Inc. (2012) 205 Cal.App.4th 436, 444.) The question of prejudice, 

however, “is critical in waiver determinations.” (St. Agnes, supra, 

31 Cal.4th at p. 1203.)
8

“Relatedly, a party that wishes to pursue arbitration must 

take ‘“active and decided steps to secure that right”’ because an 

arbitration agreement ‘“is not . . . self-executing.”’ [Citation.] 

‘Mere announcement of the right to compel arbitration is not 

enough. To properly invoke the right to arbitrate, a party must 

(1) timely raise the defense and take affirmative steps to 

implement the process, and (2) participate in conduct consistent 

with the intent to arbitrate the dispute. Both of these actions 

must be taken to secure for the participants the benefits of 

arbitration. [Citations.]” (Fleming Distribution Co. v. Younan

(2020) 49 Cal.App.5th 73, 80–81 (Fleming).)

II. Standard of review

The party asserting waiver “‘bears the burden of producing 

evidence of, and proving by a preponderance of the evidence, any 

fact necessary to the defense.’ [Citation.]” (Hotels Nevada v. L.A. 

Pacific Center, Inc. (2006) 144 Cal.App.4th 754, 761.)

“Generally, the determination of waiver is a question of 

fact, and the trial court’s finding, if supported by sufficient 

evidence, is binding on the appellate court. [Citations.] ‘When, 

however, the facts are undisputed and only one inference may 

reasonably be drawn, the issue is one of law and the reviewing 

court is not bound by the trial court’s ruling.’ [Citation.]” 

(St. Agnes, supra, 31 Cal.4th at p. 1196.)

“Here, the essential facts may not be in dispute, in the 

sense that no one doubts that party X did or did not do act Y on 

date Z. Nevertheless, even if there is no difference in opinion on 

such events or nonoccurrences, the inferences to be drawn from 

the essential facts are conflicting. And where conflicting

inferences may be drawn, the issue is reduced to whether the 

trial court’s finding of waiver is supported by substantial 
9

evidence. [Citations.] In conducting that standard of review, 

‘[w]e infer all necessary findings supported by substantial 

evidence [citations] and “construe any reasonable inference in the 

manner most favorable to the [ruling], resolving all ambiguities 

to support an affirmance” [citation].’ [Citation.]” (Davis v. 

Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 962–963.)

“Reversal is not justified simply because the trial court

could have potentially reached a different conclusion on the 

question of waiver; ‘rather, we may reverse the trial court’s 

waiver finding only if the record establishes a lack of waiver as a 

matter of law.’ [Citation.]” (Fleming, supra, 49 Cal.App.5th at

p. 81.)

III. The trial court properly denied defendants’ motion

Applying these legal principles, we conclude that the trial 

court did not err in denying defendants’ motion to compel 

arbitration. Substantial evidence supports the trial court’s 

determination that defendants waived their right1 to arbitrate 

this dispute.

Defendants’ conduct was inconsistent with a right to 

arbitrate. As confirmed in defense counsel’s August 31, 2020, 

letter to plaintiff’s counsel, defendants knew they had a right to 

arbitrate plaintiff’s claims before they were served with the 

summons and complaint. Despite this knowledge, defendants 

waited over 14 months before bringing their motion to compel 

arbitration. In the meantime, (1) plaintiff posted jury fees, 

(2) defendants filed their answer to the complaint, asserting 

1

For ease, we refer to defendants’ “right” to arbitrate this 

dispute, but we offer no opinion on whether the contract was 

enforceable.
10

arbitration as an affirmative defense, (3) defendants filed a case 

management statement requesting a nonjury trial and providing 

the trial court with a time estimate and dates of unavailability, 

(4) defendants were aware of plaintiff’s case management 

statement that specifically referenced a potential defense motion 

to compel, and (5) defense counsel represented to the trial court 

at the May 24, 2021, case management conference that their 

motion to compel would be filed within two to three weeks. 

Taken together, all of these actions are inconsistent with an 

intent to arbitrate this matter.2

The same evidence demonstrates that the parties were well 

into preparation for a lawsuit and trial before defendants filed

their motion to compel. In addition, a final status conference 

date had been set, with accompanying deadlines for pretrial 

documents. And, a jury trial was scheduled to commence just two 

months after the initial hearing date of defendants’ motion.

Finally, defendants’ delay prejudiced plaintiff. (Fleming, 

supra, 49 Cal.App.5th at p. 83.) As the trial court aptly noted, 

plaintiff suffered the prejudice of having to wait to have her 

claims determined—claims that may have already been decided 

had defendants promptly moved to compel arbitration. (Ibid. 

[prejudice exists where the petitioning party’s conduct has 

substantially impaired the other side’s ability to secure the

benefits and efficiencies of arbitration].)

Urging us to conclude otherwise, defendants direct us to 

Quach v. California Commerce Club, Inc. (2022) 78 Cal.App.5th 

2

The fact that defendants “notified” plaintiff of their intent 

to enforce the arbitration agreement is insufficient. (Fleming, 

supra, 49 Cal.App.5th at pp. 80–81.)
11

470, review granted August 24, 2022, S275121 (Quach). In 

Quach, the Court of Appeal held that the party opposing the 

motion to compel arbitration did not make an adequate showing 

of prejudice as a matter of law. (Id. at p. 478.) “His showing 

below indicated nothing more than the parties participated in 

litigation. . . . [He did] not show[] any prejudice apart from the

expenditure of time and money on litigation. He [did] not, for 

example, claim [that the defendant/moving party] gained 

information or conducted discovery it would not have been able to 

obtain in arbitration or that the delay led to lost evidence.” 

(Id. at p. 479) Relying upon this language, defendants contend

that plaintiff here did not demonstrate prejudice; therefore, her 

waiver argument fails.

Defendants seem to be asking us to do what our colleagues 

in Division 8 recently refused to do. In Kokubu v. Sudo (2022) 

76 Cal.App.5th 1074, the court considered a request “to limit 

prejudice to situations where the opposing party has (i) provided 

information in compliance with civil discovery obligations that do 

not apply in arbitration; or (ii) ‘alter[ed] its litigation posture in a 

fundamentally inalterable or otherwise sticky [sic] way . . . .’” 

(Kokubu v. Sudo, supra, 76 Cal.App.5th at p. 1090; see also id. at 

p. 1083.) It declined to do so, noting that the “[c]ases do not 

support such a limitation.” (Id. at p. 1090.)

For the same reason, including those outlined in the 

dissent in Quach, we reject defendants’ contention. (Quach, 

supra, 78 Cal.App.5th at pp. 485–490 (dis. opn. of Crandall, J.).) 

Defendants’ “tactics were prejudicial because they deliberately 

and forever undermined the very nature of a quick resolution 

that is the central tenet of arbitration.” (Id. at p. 490; see also 

Kokubu v. Sudo, supra, 76 Cal.App.5th at p. 1091 [“courts have 
12

considered delayed recovery of a claimed, but disputed, 

entitlement as contributing to prejudice resulting from a delayed 

arbitration demand”].)

To the extent defendants purport to blame plaintiff for 

their delay in filing their motion to compel, we are not convinced. 

Regardless of whether defense counsel asked plaintiff’s counsel to 

stipulate to arbitration and never got a response, it was 

incumbent upon defendants to pursue their motion if that is what 

they desired—particularly in light of plaintiff’s actions that 

demonstrated her desire to proceed with a jury trial.

DISPOSITION

The order is affirmed. Plaintiff is entitled to costs on 

appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

_____________________, Acting P. J.

ASHMANN-GERST

We concur:

________________________, J.

CHAVEZ

________________________, J.

HOFFSTADT